TITLE 20 - EMPLOYEES' BENEFITS

CHAPTER V - EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR

PART 655 - TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

subpart h - LABOR CONDITION APPLICATIONS AND REQUIREMENTS FOR EMPLOYERS USING NONIMMIGRANTS ON H - 1B VISAS IN SPECIALTY OCCUPATIONS AND AS FASHION MODELS, AND LABOR ATTESTATION REQUIREMENTS FOR EMPLOYERS USING NONIMMIGRANTS ON H - 1B1 VISAS IN SPECIALTY OCCUPATIONS

655.760 - What records are to be made available to the public, and what records are to be retained?

  (a) Public examination. The employer shall make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the labor condition application is filed with DOL. The following documentation shall be necessary: (1) A copy of the certified labor condition application (Form ETA 9035E or Form ETA 9035) and cover pages (Form ETA 9035CP). If the Form ETA 9035E is submitted electronically, a printout of the certified application shall be signed by the employer and maintained in its files and included in the public examination file.

  (2) Documentation which provides the wage rate to be paid the H1B nonimmigrant; (3) A full, clear explanation of the system that the employer used to set the actual wage the employer has paid or will pay workers in the occupation for which the H1B nonimmigrant is sought, including any periodic increases which the system may providee.g., memorandum summarizing the system or a copy of the employer's pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action).

  (4) A copy of the documentation the employer used to establish the prevailing wage for the occupation for which the H1B nonimmigrant is sought (a general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action); and (5) A copy of the document(s) with which the employer has satisfied the union/employee notification requirements of 655.734 of this part.

  (6) A summary of the benefits offered to U.S. workers in the same occupational classifications as H1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/all H1B nonimmigrants are receiving home country benefits (see 655.731(c)(3)); (7) Where the employer undergoes a change in corporate structure, a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and EIN of the new employing entity (see 655.730(e)(1)).

  (8) Where the employer utilizes the definition of single employerin the IRC, a list of any entities included as part of the single employer in making the determination as to its H1B-dependency status (see 655.736(d)(7)); (9) Where the employer is H1B-dependent and/or a willful violator, and indicates on the LCA(s) that only exempt H1B nonimmigrants will be employed, a list of such exempt H1B nonimmigrants (see 655.737(e)(1)); (10) Where the employer is H1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing this information) (see 655.739(i)(4).

  (b) National lists of applications and attestations. ETA shall compile and maintain on a current basis a list of the labor condition applications filed under INA section 212(n) regarding H1B nonimmigrants and a list of labor attestations filed under INA section 212(t) regarding H1B1 nonimmigrants. Each list shall be by employer, showing the occupational classification, wage rate(s), number of nonimmigrants sought, period(s) of intended employment, and date(s) of need for each employer's application. The list shall be available for public examination at the Division of Foreign Labor Certification, Department of Labor, 200 Constitution Avenue, NW., Room C4312, Washington, DC 20210.

  (c) Retention of records. Either at the employer's principal place of business in the U.S. or at the place of employment, the employer shall retain copies of the records required by this subpart for a period of one year beyond the last date on which any H1B nonimmigrant is employed under the labor condition application or, if no nonimmigrants were employed under the labor condition application, one year from the date the labor condition application expired or was withdrawn. Required payroll records for the H1B employees and other employees in the occupational classification shall be retained at the employer's principal place of business in the U.S. or at the place of employment for a period of three years from the date(s) of the creation of the record(s), except that if an enforcement action is commenced, all payroll records shall be retained until the enforcement proceeding is completed through the procedures set forth in subpart I of this part.

(Approved by the Office of Management and Budget under control number 1205 0310) [59 FR 65659, 65676, Dec. 20, 1994, as amended at 60 FR 4029, Jan. 19, 1995; 65 FR 80232, Dec. 20, 2000; 66 FR 63302, Dec. 5, 2001; 69 FR 68228, Nov. 23, 2004; 70 FR 72563, Dec. 5, 2005]